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Subramanya Chetti and anr. Vs. Appasami Nayak - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1883)ILR6Mad355
AppellantSubramanya Chetti and anr.
RespondentAppasami Nayak
Excerpt:
civil procedure code, sections 503, 588 (24) - refusal to appoint receiver. - - 1. a zamindar named appasami nayak having become indebted to certain chettis, is alleged to have executed a bond in their favour on the 16th of may 1882, promising to pay the amount of the debt by instalments, and, on failure of any one instalment, to pay the whole amount with interest and hypothecating the income which he might derive from certain villages, after deducting the peshkash and other charges......procedure, section 503, refused to appoint a receiver.3. the plaintiffs have now appealed against that order; and the main question for our determination is whether an appeal will lie against an order of a court refusing to, exercise the power of appointing a receiver.4. if the subordinate judge had complied with the application, and had proceeded to appoint a receiver under section 503 of the code of civil procedure, then the order made under that section would have been subject to appeal by the express terms of section 588 (24), but we do not find that there is any right of appeal against a mere refusal to make an order under that section.5. if it were necessary to decide the point, we should hesitate to say that the income of the villages was ' the subject of the suit 'within the.....
Judgment:

1. A zamindar named Appasami Nayak having become indebted to certain Chettis, is alleged to have executed a bond in their favour on the 16th of May 1882, promising to pay the amount of the debt by instalments, and, on failure of any one instalment, to pay the whole amount with interest and hypothecating the income which he might derive from certain villages, after deducting the peshkash and other charges.

2. The Chettis then brought Suit 16 of 1883 against the zamindar, who had made a default, to enforce the payment of the debt upon the security of the income hypothecated, and asked for the appointment of a receiver before judgment. The application was opposed on behalf of the zamindar, and the Subordinate Judge, conceiving that the appointment of a receiver was unnecessary, that the zamindar was entitled to collect the revenue of the villages, and that the income of the villages did not form the subject of the suit within the meaning of the Code of Civil Procedure, Section 503, refused to appoint a receiver.

3. The plaintiffs have now appealed against that order; and the main question for our determination is whether an appeal will lie against an order of a Court refusing to, exercise the power of appointing a receiver.

4. If the Subordinate Judge had complied with the application, and had proceeded to appoint a receiver under Section 503 of the Code of Civil Procedure, then the order made under that section would have been subject to appeal by the express terms of Section 588 (24), but we do not find that there is any right of appeal against a mere refusal to make an order under that section.

5. If it were necessary to decide the point, we should hesitate to say that the income of the villages was ' the subject of the suit 'within the meaning of the 503rd Section of the Code. The subject of the suit is the debt, which is claimed, and the sale of the hypothecated income is merely a mode of obtaining payment.

6. At present it has not been shown that the zamindar has exceeded his rights in the collection of the revenue of the villages.

7. We dismiss this appeal with costs.


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